Supreme Court will rehear case on Child Online Protection Act

WASHINGTON, D.C. — For the second time in two years,the U.S. Supreme Court agreed Tuesday to review a law that punishes commercialWeb site operators who make sexual material that is deemed ”harmful”available online to minors younger than 17. The case, Ashcroft v.ACLU II, questions whether the 1998 Child Online Protection Act restrictsadults from viewing or purchasing constitutionally protected sexual materialonline. In addition, the court will review if it is unconstitutional for COPAto require adults to enter a personal identification code to access sexualcontent online.COPA calls for first-time offenders to face up to sixmonths in jail and $50,000 in fines. Repeat offenders could face additionalfines. However, COPA has never been enforced because of pending legalactions.The American Civil Liberties Union filed its lawsuit on behalfof online publishers and artists who contend that COPA unconstitutionallyrestricts the speech of adults who want to browse or purchase itemsonline.The U.S. Court of Appeals for the Third Circuit ruled twice thatthe law violates the First Amendment. In the first ruling in June 2000, thePhiladelphia-based Third Circuit found the law was unconstitutional because itallowed online content to be judged by ”contemporary communitystandards.” The court said a Web site publisher cannot geographicallycontrol where the information is accessed and, therefore, the most conservativestandard would apply nationwide. In March, the Third Circuit ruledthat COPA was ”constitutionally infirm” because it would require Webpublishers to self-censor and exclude protected speech for adults in order toavoid prosecution.The Third Circuit’s ruling did not directlydetermine whether minors have complete First Amendment protection. However, thecourt did argue that the law was ”significantly over-inclusive”citing that sex education material that could be ”patentlyoffensive” to children between the ages of 10 and 13 may have”serious value” for 16-year-olds. It is unclear whether the SupremeCourt will rule on the case’s implications for minors’ First Amendmentrights.The Justice Department appealed the latter ruling to the SupremeCourt in August. In the appeal, Solicitor General Theodore Olson argued thatchildren are ”unprotected from the harmful effects of the enormous amountof pornography on the World Wide Web.”Olson said the law targetsInternet pornographers who use sexually explicit ”teasers” toattract customers. The teasers appear when users, both adults and children, arenot searching for pornographic material. Usually, the teasers link to thepornographic site.The ACLU argues that COPA could violate the rights ofpeople using the Internet for sexual education and health-related purposes. Inaddition, the ACLU argues that requiring adult identification before enteringcertain Web sites could have a chilling effect on speech because people could beunwilling to provide that information. The first time the SupremeCourt reviewed COPA in Ashcroft v. ACLU in May 2002, the justices foundthat using ”community standards” did not mean the law wasunconstitutional. The case was sent back to the lower court so that thelaw’s other First Amendment implications could be reviewed.COPAitself is the result of the 1997 Supreme Court case Reno v. ACLU in whichthe court unanimously struck down the 1996 Communications Decency Act, whichprohibited people from knowingly making ”patently offensivematerial” accessible to minors.The Supreme Court will hear thecase in early 2004 and a decision on the law could be made by the end of June.

Read the text of solicitor general’s petition
ACLU v. Ashcroft, No. 03-218 (approved)

Read previous coverage